'Restorative Justice' may be sought for transgender teen and assailants

More than 123,000 people have signed an online petition urging the Contra Costa County district attorney to drop battery charges against a transgender teen who said she was bullied at school before a fight between her and her tormentors on campus, and now attorneys on both sides are hashing out a compromise.

All four students involved in the fight at Hercules High in November were suspended, but only 16-year-old Jewlyes Gutierrez was charged with a crime, according to a petition on the website Change.org posted a week ago by her older sister. It was the fastest-growing petition on the site Wednesday, with 65,000 signatures gathered over the past 24 hours, said Mark Anthony Dingbaum, communications manager for Change.org.

Jewlyes Gutierrez, 16, of Hercules, is photographed at her home in Hercules, Calif., on Friday, January 10, 2014. Gutierrez, a transgender teen, says that after being bullied while attending school at Hercules High, sher got into a fight and is now being charged with misdemeanor battery. (Jose Carlos Fajardo/Bay Area News Group)

Deputy District Attorney Daniel Cabral said public pressure did not drive the discussions.

"Whenever cases are pending like this, the attorney and the district attorney meet and talk about ways of handling the matter," he said. "And that's what we're doing."

Cabral and deputy public defender Kaylie Simon said late Wednesday afternoon that they were considering enlisting the help of the National Council on Crime and Delinquency to possibly facilitate a "restorative justice circle" for all students involved, which would allow them to accept accountability for their roles in the bullying and the fight, and learn from the process. But they said they weren't sure whether charges would be dropped.

"The goal of the juvenile justice system is to provide care, treatment and guidance for what's in the juvenile's best interest, and we keep that in mind -- holding people accountable but also providing that care and treatment. I think that this sort of care, treatment and guidance is consistent with the juvenile justice system," he said.

The case came to public attention when police learned that the fight involved a transgender student, and they said they were investigating whether the incident was a hate crime or a case of bullying. A cellphone video of the fight between the students was posted online, and police said at the time it appeared that Gutierrez threw the first punch.

The District Attorney's Office has declined to say whether the other students were charged, citing confidentiality laws protecting juveniles.

Simon said she asked Gutierrez and her family not to speak to the media while the discussions were going on. However, in an interview last week, Gutierrez expressed frustration that the school did not appear to take seriously her complaint that she was being bullied because of her gender identity. She said she complained in November to Catherine Floresca, assistant principal of Hercules High, about the harassment after a hostile girl spat gum at her during class. But Floresca allowed the girl to return to the classroom, where the bullying continued, Gutierrez said.

The fight on campus occurred a day or two later. "She didn't really step in and protect me," Gutierrez said last week. "She didn't know what steps to take. I feel like if you go up to somebody and report something that happened -- like some student spit gum at me -- that they should do something right away, like the student should get a suspension or detention. For them to get to let it slide and not even get a detention, that's pretty messed up."

Floresca and Hercules High Principal Jennifer Bender did not respond to phone calls and e-mails seeking comment Wednesday afternoon. Adam Taylor, executive director for K-12 schools in the West Contra Costa school district, said last week that the district was working with the school to educate students and staff about the importance of intervening immediately when bullying occurs.

Charles Ramsey, president of the West Contra Costa school board, said he asked the Hercules City Council on Tuesday for a joint meeting as soon as possible to discuss school safety and other issues.

Eliza Byard, executive director of the Gay, Lesbian and Straight Education Network, supports the Gutierrez petition and said she was appalled that criminal charges were filed over the fight.

"We are deeply concerned about all cases of this nature," she said. "It's important to call everyone's attention to this and awaken everyone's conscience to what's going on."

Staff writer Natalie Neysa Alund contributed to this story.

MORE INFORMATION:
The petition urging the Contra Costa district attorney to drop the charges against Hercules High student Jewlyes Gutierrez is available by visiting: www.change.org and typing "jewlyes Gutierrez" into the search box.
To see a video of Gutierrez telling the West Contra Costa school board about the bullying that led up to the fight, visit www.contracostatimes.com/education.